# Opposition Brief — Plaisance v. Travelers Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 931

## Text

No. 95-305

Supreme Court of the United States

October Term, 1995
KENNETH M. PLAISANCE,
Petitioner,
vs.
TRAVELERS INSURANCE CO.,
Respondent.

On Petition for Writ of Certiorari to the United States Court
of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JOHN F. WYMER, III
Counsel of Record
DEBORAH R. KURZWEIL
POWELL, GOLDSTEIN, FRAZER
& MURPHY
Attorneys for Respondent
16th Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600

pgs (800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21
ervices, inc.

i
QUESTIONS PRESENTED

I. Did the Magistrate Judge have the authority to issue a
report and recommendation, subject to de novo review by the
District Judge, on the parties’ respective motions for summary
judgment?

II. Did the District Court (as upheld by the Eleventh Circuit’s
per curiam decision) abuse its discretion in holding that Travelers
timely answered Plaisance’s request for admissions? |

III. Was it an abuse of discretion for the District Court (as
upheld by the Eleventh Circuit’s per curiam decision) to deny
Plaisance’s motion to amend his Complaint to request a jury trial
because it was untimely?

IV. Did the District Court (as upheld by the Eleventh
Circuit’s per curiam decision) apply the correct standard in
awarding summary judgment to Travelers when it cited Celotex
Corp. v. Catrett and its progeny?

V. Did the District Court (as upheld by the Eleventh Circuit’s
per curiam decision) act properly in granting summary judgment
on Plaisance’s various discrimination claims?

ii

LIST OF PARTIES

Travelers Insurance Co. is a wholly owned subsidiary of
Travelers Insurance Group, Inc. which is a wholly owned
subsidiary of Travelers Group, Inc. Smith Barney, Inc., Shearson
Lehman Brothers International Advisors Currency Fund L.P.,
Shearson Lehman Futures 1000 Plus, L.P., Shearson Lehman
Select Advisors Futures Fund L.P., CCC Holdings, Inc. and
Commercial Credit Company are affiliated companies.

iii
TABLE OF CONTENTS

i, <Cogyleueeue cess ewevevecbesees

EE ae a. do ee cave enaeteves

A. Proceedings and Dispositions Below ..........

i i cCcétéececeeccceteceeeves
Summary of theArgument ...............600000e05:
Reasons for Denying the Writ ...............000000.

I. The District Court did not violate 28 U.S.C. § 636

or Article ITI of the United States Constitution by
designating a Magistrate Judge to issue a Report
and Recommendation, subject to de novo review,
on the parties’ respective summary judgment
DT SoS Uedsebeeseddedceesccsardvegocs
II. The District Court did not abuse its discretion in

finding that Travelers was timely in its response to
Plaisance’s discovery request and properly denied
his motion for summary judgment. ............

iv

Contents
Page
III. Plaisance’s jury trial appeal is not properly before |
GRPGIIUEE, cc cccadecedccnccecccctseccestoes 11
IV. The District Court applied the correct standard in |
awarding summary judgment to Travelers. ...... 11
V. The District Court properly granted summary |
judgment on Plaisance’sclaims. .............. 12 |
|
A. The Retaliation Claim Was Properly |
ce TE IES pate ie eee 12 |
B. The District Court Properly Dismissed |
Plaisance’s Constructive Discharge Claim. . 13
C. Plaisance’s Failure-To-Transfer And Failure-
To-Promote Claims Were Properly
NES cos ccdsececsecscceeeucesncs 14
D. Plaisance’s Claims Are Not Actionable Under
GR UaNaes Be nccceusuccensceeetnens 16
CIO nd ndcctauecdeesesasdudeeusdicadcescasas 18
TABLE OF CITATIONS
Cases Cited:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 11

Bay v. Times Mirror Magazines, Inc., 936 F.2d 112 (2nd
RE TED ed bcddcdkierasiuddéaccéucsokeateadees 12

Vv

Contents

Carter v. Miami, 870 F.2d 578 (11th Cir. 1989) .........

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..........

Crady v. Liberty National Bank and Trust Co. of India, 993
Dues SGT MEE 0 v0. csvessevusos Vaceeseese

Earley v. Champion Intern. Corp., 907 F.2d 1077 (11th Cir.
SUPER Sia dave wc cacti cectesdccssdesovdvestecees
COR, BIG ed ba chdcvctiucbdacedsescceestdévactes

Harding v. Gray, 63 Fair Emp. Prac. Cas. (BNA), 475
Ge Get SE hacecichsuyvdecdicsveetwsevavare

Hutchison v. Amateur Electric Supply, 42 F.3d 1037 (7th
COE BOE cb vcvevevecovecscusvecuctettvacvenss

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
OS FREIGED ccccctvcssevecdecectscoseseaers

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

Mitchell v. Toledo Hospital, 964 F.2d585 .............

Pace v. Southern Ry. System, 701 F.2d 1383 (11th Cir.
1983), cert. denied, 464 U.S. 1018(1983) ..........

Patterson v. McLean Credit Union, 491 U.S. 164 .......

12, 13

12

12, 13

1]

14

12,15

vi

Contents
Page
Patterson v. U.S. Postal Service, 901 F.2d 927 (11th Cir.
SPPGP ccccecceceavescevesurecaseedereueéesnees 10
Public Employees Retirement System of Ohio v. Betts, 492
Ue SFOCISESD ocncvaredessssccacsisdetsevetes 12

Rivers v. Roadway Express, Inc., 114S.Ct. 1510(1994) . 17

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (Sth Cir.

IDIGD covccceccovvectvctccecsvceseseseeueedet 14
Smith v. Sentry Ins. Co., 45 Fair Emp. Prac. Cas. (BNA) 716

GN. BD. Ga, TFET) ccccccccsccsccvecsencsevecvesse 14
United States v. Diebold, Inc., 369 U.S.654(1962) ..... 11,12

Whatley v. M.A.R.T.A., 632 F.2d 1325 (Sth Cir. 1980) .... 12

Statutes Cited:

PBUBL, GGG cccccncccesvcctcevcevssewevedveces 8
SBU.EC. GGRGRD) os vecccvccesvcvesctevewevecs’ 2,8
28 U.S.C. FGSEIBMIMA) occcccccvcecccccesscesecss 9
SBUSC. GGRSMIE) oc cccccccoecdensiccsvcsves 7,8,9
28 U.S.C. § 636(D)(I)(C) oo secre ccececeececeececees 9

AZ USC. GIGS cccccccccccsevccvcesvceseesecs 2,8, 16,17

vii

Contents
Ge h SPEED Chad ho ess csebsvivdsdvedceccces
GEV BK FARIS GD ceccccccccctccccecccsvcceces
United States Constitution Cited:
RENEE cb sb cereedvddceredecverccecsvccececce
Rules Cited:

Federal Rule of Civil Procedure 36 ..................
Federal Rule of Civil Procedure 56 ..................
Local Rules of Practice 225-1(a) .........ccccecccees

APPENDIX
Appendix A — Magistrate Judge’s Report and
Recommendation and Order of the United States
District Court, N.D. Georgia, Atlanta Division Dated
PEE Su edessvbdrnvecdsevébcoeecucoeecs

Appendix B — Opinion of the United States Court of
Appeals for the Eleventh Circuit Dated May 24,1995 .

Appendix C—28 U.S.C. §636 .....cccccccccccveees

Appendix D — Federal Rule of Civil Procedure 36 ......

Appendix E — Federal Rule of Civil Procedure 56 ......

la

37a

39a

viii

Contents
Page
Appendix F — Federal Rule of Civil Procedure 225 ..... 46a
Appendix G — Federal Rule of Civil Procedure 38 ...... 47a
Appendix H—-42 U.S.C. § 1981 ....cccccccccccccces 49a

Appendix I—42U.S.C. § 2000e-2 .........c0eeeeees 50a

]

No. 95-305

In The

Supreme Court of the United States
+

October Term, 1995

KENNETH M. PLAISANCE,

Petitioner,

vs.

TRAVELERS INSURANCECO.
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Travelers Insurance Co., respectfully requests
that this Court deny the petition for writ of certiorari which seeks
review of the Eleventh Circuit's affirmance of the judgment of
the United States District Court for the Northern District of
Georgia. The District Court opinion, granting summary
judgment, is reported at 880 F.Supp. 798 (N.D. Ga. 1994) and is
reprinted at Appendix A. The Eleventh Circuit affirmed the
District Court’s ruling in a per curiam opinion on May 24, 1995.
That decision is reported at 56 F.3d 1391 (11th Cir. 1995). The
decision is reprinted at Appendix B.

2
STATUTES INVOLVED
28 U.S.C. § 636(b)(1)
Rule 36 of the Federal Rules of Civil Procedure
Rule 56 of the Federal Rules of Civil Procedure

Rule 225-1(a) of the Local Rules of Practice of the
United States District Court for the Northern District
of Georgia

Rule 38 of the Federal Rules of Civil Procedure
42U.S.C. § 1981

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a)

The full text of these statutes is in the Appendix.

STATEMENT OF THE CASE

A. Proceedings and Dispositions Below.

Kenneth Plaisance, Petitioner herein, alleges that his former
employer, Travelers Insurance Company, discriminated against
him on the basis of race, African-American, in violation of Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. He also
alleges retaliation in violation of Title VII. R.1-1.'

In December, 1992, Plaisance filed suit in United States
District Court for the Eastern District of Louisiana in New

1. Citations to the Record will be in this form: R. (volume number) -
(document number) - (page number, if applicable).

3

Orleans. Jd. Plaisance simultaneously served Travelers with
written discovery in the form of requests for admissions.
Travelers filed a motion to dismiss for improper venue as well as
a motion for enlargement of time in which to answer Plaisance’s
discovery; both motions were granted by the Court. R.2-27-1.?
By order dated May 4, 1993, the case was transferred to the
Northern District of Georgia. R.1-8. The case was assigned to
United States District Judge Robert H. Vining, Jr. and referred to
Magistrate Judge William L. Harper.’ Travelers timely filed its
Answer on July 3, 1993 and served its discovery responses on
August 4, 1993, within the time limits specified by the Local
Rules of Practice of the United States District Court for the
Northern District of Georgia. R.1-10; R.1-21-2.4

Prior to the close of discovery, Plaisance filed a motion for
summary judgement based primarily on his contention that
Travelers’ responses to his requests for admissions were not filed
within thirty (30) days of when his Complaint was filed in
Louisiana, and thus, according to Plaisance, were deemed
admitted. R.1-19. Travelers filed its opposition to Plaisance’s
motion for summary judgment, and sought sanctions. R.1-21.
Magistrate Harper issued a Report in which he recommended the
denial of Plaisance’s motion for summary judgment, and denied

2. The discovery, motion to dismiss, motion for enlargement of time and
the order granting same are not part of the Record. Although Plaisance bases
his Petition, in part, on these documents, he did not request that they be made
part of the Record. Travelers, therefore, has no choice but to cite to documents
in the Record that refer to these documents.

3. The document referring this case to the Magistrate is not part of the
Record. However, Flaisance does refer to it in his Petition. See Appellant
Petition, p. 3.

4. Plaintiff also failed to make these discovery responses a part of the
Record.

4

Travelers’ request for sanctions. R.2-24. Judge Vining reviewed
and adopted the Magistrate’s Report and Recommendation.
R.2-28.

In September 1993, Plaisance filed an untimely demand for
jury trial. R.1-20. The District Court denied Plaisance’s demand
for jury trial. R.2-24; R.2-28.

At the conclusion of discovery, Travelers filed its own
motion for summary judgment. R.2-31. The Magistrate issued a
Report recommending that the motion be granted. R.2-37. After
Plaisance objected to the Magistrate’s Report and
Recommendation, Judge Vining reviewed and adopted the
Report and Recommendation, and entered judgment in favor of
Travelers. R.2-38; R.3-40; R.3-41. Plaisance appealed that ruling
to the Eleventh Circuit Court of Appeals. R.3-42. The Eleventh
Circuit affirmed the lower Court’s judgment in favor of Travelers
without opinion. See Appendix B. This Petition followed.

B. Statement of Facts.

Plaisance, an African-American, is from New Orleans,
Louisiana, where he went to high school and college. Pif. Dep., p.
4.5In 1988, he received his law degree from Southern University
in Baton Rouge, Louisiana, and is now a licensed, practicing
attorney in New Orleans. PIf. Dep., pp. 4-5, 10.

In May 1989, managers of Travelers’ Danvers,
Massachusetts office, traveled to Southern University for the
purpose of recruiting minority employees for the Danvers office.
Pif. Dep., p. 26; R.2-31-Ex. A, { 4. There they met, interviewed

5. Travelers’ brief is based heavily on Plaisance’s deposition, taken on
November 16, 1993, which will be referred to as “Pif. Dep., p. .” The sealed
deposition is an exhibit to the Record.

5

and hired Plaisance. Plaisance had a satisfactory but brief career
at Travelers, which ended in January 1991 when he resigned after
accepting a job in the New Orleans City Attorney's office. PIf.
Dep., pp. 10-11. In the 19 to 20 months Plaisance worked at
Travelers, he was promoted twice and received four pay raises.
Plf. Dep. pp. 35, 152-53; R.2-31-Ex. D,{ 12.

Plaisance did not like living in Massachusetts, and wanted to
return to the South. Pif. Dep., pp. 87-88. In July 1990, while
vacationing in Atlanta, Plaisance dropped by Travelers’ Atlanta
office and learned of an opening for a position known as a
Litigation Technical Specialist. Plf. Dep., pp. 92-93. Among the
various requirements for this position was the requirement that
the person possess at least five years experience managing
litigated claims. Pif. Dep.; Ex. 12; R.2-31-Ex. C, Ex. A.
Plaisance, however, did not begin to meet this minimum
qualification, having just four months of experience managing
litigated claims. Plif. Dep., p. 101. Because Plaisance lacked the
minimum qualifications for the job, he was not hired.

The Company ultimately hired Philip Krajec, also an
attorney, who was better qualified than Plaisance, and who
possessed the required five (5) years of experience managing
litigated claims. R.2-31-Ex. B, { 6.

On or about August 1, 1990, Plaisance, who had already
made it clear he wanted to leave the Danvers office, mentioned to
one of his supervisors in the Danvers office that he wanted to be
considered for a supervisory job that was open. Although
Plaisance apparently considered the opportunity to be a
promotion, the job was comparable to his current job in terms of
pay and benefits. While Plaisance was qualified for the job, the
position was awarded to Maureen Mullins, a white female,
because the Company judged her to be better qualified. Pif. Dep.,
pp. 128-129; R. 2-31-Ex. A. Furthermore, Plaisance had a law

6

degree which made Plaisance more valuable to the Company as a
Technical Specialist. R.2-31-Ex. A.

In January 1991, while out on a medical leave from
Travelers, and without notifying Travelers, Plaisance began
working in the City Attorney’s office for the City of New Orieans,
Plaisance’s hometow: /lf. Dep., pp. 141-42; 148-150.

Plaisance filed two charges of discrimination with the Equal
Employment Opportunity Commission (“the EEOC”). He filed
the first charge on October 30, 1990, in which he alleged that he
was denied a transfer to the Atlanta office, and was denied an
assignment to supervisor in the Danvers office, because of his
race. Pif. Dep., pp. 128-129; Ex. 16. In his second charge, filed on
December 12, 1990, he alleged retaliation based on the informal
performance evaluations he received after filing his first charge
of discrimination. Plf. Dep., pp.137-138; Ex. 17. However, his
evaluator, Ms. Lyle, did not know about Plaisance’s EEOC
charges until after he resigned in January 1991, and thus, did not
know of Plaisance’s charge at the time she conducted the interim
performance reviews which Plaisance contends were retaliatory.
R.2-31-Ex. D,{ 11; R.2-31-Ex.A,] 13. After investigating both
of Plaisance’s discrimination/retaliation charges, the EEOC
found no cause to believe that a violation of Title VII had
occurred. Plf. Dep.; Ex. 23, 24.

SUMMARY OF THE ARGUMENT

The District Judge correctly dismissed Plaisance’s race
discrimination case because it was based only upon Plaisance’s
conclusory allegations that had no factual support. Rarely could a
case be more appropriate for summary adjudication than this one.
In all candor, and with all due respect to Petitioner, to characterize
this Petition as “frivolous” lends the Petition greater dignity than
it deserves. A brief examination of Petitioner’s arguments
underscores theirtransparency. —

7

One of Plaisance’s arguments is that a Magistrate Judge does
not have the authority to make a recommendation, subject to de
novo review, on a motion for summary judgment. By misquoting
28 U.S.C. § 636(b)(1)(B), Plaisance challenges the Magistrate’s
authority to recommend findings of fact and law to the District
Judge on motions for summary judgment. An honest reading of
that provision shows that Magistrate Judges are expressly
empowered with the authority to make findings of fact and
recommendations on motions for summary judgment.

Plaisance also challenges the District Court’s denial of his
motion for summary judgment, based on his professed belief that
Travelers failed to timely respond to his request for admissions
pursuant to an order from the Eastern District of Louisiana.
However, once the Court in Louisiana dismissed the case for lack
of venue and transferred it to the United States District Court for
the Northern District of Georgia, the case immediately became
subject to the Local Rules of Practice for that District Court. It is
not disputed that Travelers timely responded to Plaisance’s
discovery requests in accordance with the Local Rules.

Plaisance also questions the District Court’s finding that he
failed to make a timely jury demand. This issue could not be ripe
for appeal since there was no trial, bench or jury.

Plaisance further challenges the District Court’s decision to
dismiss his case because the Court cited Celotex Corp. v. Catrett,
477 U.S. 317 (1986) to explain the standard for summary
judgment. According to Plaisance, Celotex does not apply to his
case because Celotex is not a discrimination case. Such is the
quality of the issues that Plaisance raises in his Petition.

In addition to these procedural issues, Plaisance also
disputes the District Court’s dismissal of his retaliation claim, his
constructive discharge claim, his failure-to-transfer claim, his

failure-to-promote claim, and his § 1981 claim. Plaisance failed
to establish a prima facie case as to any of those claims.

All of the above considerations notwithstanding, the case is
not suited for Supreme Court review because none of the various
“questions” presented by Plaisance concern conflicting decisions
of Courts of Appeal or involve important questions of federal law.
The decision below is consistent with this Court’s precedent as
well as that of the Circuit Courts. There is no reason for further
review by this Court.

REASONS FOR DENYING THE WRIT
I.

THE DISTRICT COURT DID NOT VIOLATE 28
U.S.C. § 636 OR ARTICLE III OF THE UNITED STATES
CONSTITUTION BY DESIGNATING A MAGISTRATE
JUDGE TO ISSUE A REPORT AND RECOMMEND-
ATION, SUBJECT TO DE NOVO REVIEW, ON THE
PARTIES’ RESPECTIVE SUMMARY JUDGMENT
MOTIONS.

Plaisance alleges that a Magistrate Judge does not have
authority to entertain motions for summary judgment. As the
Seventh Circuit recently commented in evaluating a contention
that was equally frivolous, this is a contention the Court “need not
ponder long before disposing of this argument.” Hutchison v.
Amateur Electric Supply, 42 F.3d 1037, 1043 (7th Cir. 1994).

Plaisance’s argument is based upon a seriously flawed
reading (and quoting) of 28 U.S.C. § 636(b)(1)(B).° Plaisance is
correct that subsection A of § 636(b)(1) permits a judge to

6. The text of 28 U.S.C. § 636(b)(1) is reprinted at Appendix C.

9

designate a magistrate to hear and determine any pretrial matter
pending before the court, except for motions for summary
judgment. 28 U.S.C. § 636(b)(1)(A). However, subsection B
permits “a judge to designate a magistrate . . . to submit to a judge
of the court proposed findings for fact and recommendations for
the disposition . . . of any motion excepted in subparagraph A

..” 28 U.S.C. § 636(b)(1)(B) (emphasis added). Thus,
subsection B specifically provides that Magistrates can assist in
the resolution of summary judgment motions by issuing a report
and recommendation to the District Judge. Jd. The Article III
judge then reviews the report and recommendation and issues its
own order, either adopting or rejecting the Magistrate’s
recommendation. 28 U.S.C. § 636(b)(1)(C).

Here, the Magistrate Judge issued a Report and
Recommendation to the District Judge on both of the motions for
summary judgment filed in this case. R.2-24; R.2-37. Judge
Vining, a duly appointed Article III judge, reviewed them and
entered an order adopting the Magistrate’s Report and
Recommendation (R.2-28; R.3-40) in both instances in
accordance with 28 U.S.C. § 636(b)(1)(C). Thus, Plaisance’s
argument that the Magistrate was not authorized to issue his
Report and Recommendation is contrary to the plain reading of
the law and deserves no further discussion.

Il.

THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN FINDING THAT TRAVELERS WAS
TIMELY IN -ITS RESPONSE TO PLAISANCE’S
DISCOVERY REQUEST AND PROPERLY DENIED HIS
MOTION FOR SUMMARY JUDGMENT.

Normally, rulings on discovery matters are left to the sound
discretion of the trial courts and are subject to review only on an

10

“abuse of discretion” standard. Patterson v. U.S. Postal Service,
901 F.2d 927 (11th Cir. 1990). Here, as with Petitioner’s other
contentions, Petitioner’s contention requires a response only
because it is before the Supreme Court. Plaisance’s argument is
based on a request for admissions he served on Travelers before
the case was transferred from Louisiana to Georgia. See, Petition
pp. 8-15. Ignoring the Louisiana Court’s enlargement of the time
to respond, and ignoring the Locai Rules of the Northern District
of Georgia, Plaisance filed a motion for summary judgment based
on a bizarre theory that Travelers admitted his request for
admissions by not answering within forty-five (45) days after the
lawsuit was filed when the case was pending in the Eastern
District of Louisiana.’ R.1-19. Plaisance is correct in his
recitation of the general rule that a request for admission is
deemed admitted if the party to whom the request is directed does
not respond with a written answer or objection within 30 (or 45
days after service of the Complaint*) days. Fed. R. Civ. P. 36(a).
However, Plaisance ignores the fact that the United States
Magistrate Judge for the United States District Court of the
Eastern District of Louisiana, extended the time for answering
discovery until 30 days after he ruled on Defendant’s Motion to
Dismiss, that Plaisance’s case was in fact dismissed for improper
venue and that Plaisance’s case was transferred to the United
States District Court For the Northern District of Georgia, Atlanta
Division. R.i-8; R.1-21. After the Louisiana Court dismissed his
case, it no longer had jurisdiction.

Upon transfer, the case was then governed by the Local
Rules of Practice of the United States District Court of the

7. Even if Travelers had not been timely in responding to Plaisance’s
request for admissions, those admissions would not prove as a matter of law
that Plaisance was discriminated against because of his race. See, R1-21-8.

8. Rule 36 of the Federal Rules of Civil Procedure was amended after the
events at issue occurred.

11

Northern District of Georgia. Under Local Rule 225-1(a),
discovery may not commence until 30 days after the appearance
of the first defendant by answer to the Complaint. Thirty days
after transfer, and in accordance with the Local Rules, Travelers
timely answered the Complaint, and 30 days after that, Travelers
answered Plaisance’s discovery requests, including the request
for admissions. How the District Court could have “abused its
discretion” in concluding that Travelers had, under the Local
Rules, timely responded to Plaisance’s discovery is not clear
from the Petition, nor could any rational analysis yield such a
conclusion. This argument merits no further discussion.

IT.

PLAISANCE’S JURY TRIAL APPEAL IS NOT
PROPERLY BEFORE THIS COURT.

Plaisance’s claim was resolved under Rule 56; thus, the issue
of jury versus bench trial is not appropriate for appeal with the
case in its current posture. Even if it was appropriate for appeal,
the District Court properly denied Plaisance’s request. Plaisance
failed to file his request within the ten days required by the Rules.
Fed. R. Civ. P. 38(b).

IV.

THE DISTRICT COURT APPLIED THE CORRECT
STANDARD IN AWARDING SUMMARY JUDGMENT
TO TRAVELERS.

Plaisance, a practicing attorney, argues that reliance on the
standard for summary judgment as outlined in Celotex Corp. v.
Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986), United States v. Diebold, Inc., 369

12

U.S. 654 (1962) is misplaced because these cases do not involve
employment discrimination. Such an argument is ridiculous; this
Court and others have often cited the so-called “summary
judgment trilogy” in ruling on employment discrimination cases.
See, e.g., Public Employees Retirement System of Ohio v. Betts,
492 U.S. 158 (1989); Crady v. Liberty National Bank and Trust
Co. of India, 993 F.2d 132 (7th Cir. 1993); Mitchell v. Toledo
Hospital, 964 F.2d 577 (6th Cir. 1992); Bay v. Times Mirror
Magazines, Inc., 936 F.2d 112 (2nd Cir. 1991); Earley v.
Champion Intern. Corp., 907 F.2d 1077 (11th Cir. 1990).
Plaisance’s argument on this issue goes beyond “frivolous.”

V.

THE DISTRICT COURT PROPERLY GRANTED
SUMMARY JUDGMENT ON PLAISANCE’S CLAIMS.

A. The Retaliation Claim Was Properly Dismissed.

In order to establish a prima facie case of retaliation,
Plaisance must establish: (1) a statutorily protected participation;
(2) an adverse employment action occurred simultaneous with or
subsequent to the protected activity; and (3) a causal link between
the participation and the adverse employment action. Hairston v.
Gainsville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993);
Whatley v. M.A.R.T.A., 632 F.2d 1325, 1328 (Sth Cir. 1980). The
entirety of Plaisance’s grounds for alleging retaliation are based
on his belief that he received a negative performance evaluation
from Ms. Lyle after he filed his first EEOC charge of
discrimination. While it is undisputed that Plaisance participated
in protected activity — he filed an EEOC charge of
discrimination — he can not establish the second or third
elements of a retaliation claim.

Plaisance did not establish that he was subjected to an
adverse employment action. At Travelers, employees are

13

evaluated annually. Plaisance’s last evaluation had been in
April 1990. R.1-31-Ex. D, { 6. Between annual evaluations,
employees are informally updated about their performance.
Travelers calls this an “open performance evaluation.” These
reviews do not affect an employee's performance rating, rate of
pay, or any other term or condition of employment, and nothing
adverse resulted from Ms. Lyle’s discussions with Plaisance. /d.
at { 5. Plaisance admits that this review had absolutely no effect
upon his employment and compensation. PIf. Dep., pp. 138-39.
Thus, a materially adve:se employment action is not present in
this case. Crady, 993 F.2d 132.

In order to establish the third element, a causal link,
Plaisance must, as the very least, show knowledge on Travelers’
part of the protected conduct. Hairston, 9 F.3d at 920. Here, the
alleged retaliator, Sue Lyle, had no knowledge of Plaisance’s
EEOC charge until after he resigned and began working for
another employer. R.1-31-Ex. D, { 11. Plaisance offered no
evidence to refute Ms. Lyle’s sworn statement; instead, he
acknowledged that she may not have been aware of his EEOC
charge. Pf. Dep., pp. 138, 173.

Because Plaisance did not suffer an adverse employment
action and because his supervisor did not know about his charge
of discrimination, summary judgment was proper as to his
retaliation claim.

B. The District Court Properly Dismissed Plaisance’s
Constructive Discharge Claim.

Plaisance’s two EEOC charges make no reference to an
alleged constructive discharge. Neither does he allege in his
Complaint that he was constructively discharged. He formally
raised the issue for the first time in his objections to the
Magistrate’s Report recommending the dismissal of his claim.

14

R.2-38. Plaisance now asserts that his resignation after he started
a new job back in New Orleans was really a “forced resignation.”
However, such a claim is barred because Plaisance failed to
allege it before the EEOC and/or for failing to allege it in his
Complaint. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466
(Sth Cir. 1970) (the scope of the judicial complaint is limited to
the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.) Because
there was no constructive discharge allegation in Plaisance’s
EEOC Charge which could have been investigated by the EEOC,
it is not properly within the scope of the Complaint. Sanchez, 431
F.2d at 466; Smith v. Sentry Ins. Co., 45 Fair Emp. Prac. Cas.
(BNA) 716, 723 (N.D. Ga. 1987). Neither did Plaisance make
such an allegation in his Complaint or seek to amend his
Complaint to alleged constructive discharge. The District Court
properly dismissed Plaisance’s belated suggestion of
constructive discharge.

C. Plaisance’s Failure-To-Transfer And _ Failure-To-
Promote Claims Were Properly Dismissed.

Plaisance’s transfer claim is based on the fact that he was not
selected for the position of Litigation Technical Specialist in
Atlanta. Yet it was undisputed in the record that Plaisance did not
meet the minimum qualifications for the job.’ Since one of the
elements necessary to establish a prima facie case of
discrimination is to show that the plaintiff was qualified for the
position sought, McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), Piaisance’s claim was properly dismissed because he
did not establish a prima facie case.

Unlike the Litigation Technical Specialist job in Atlanta,

9. The job required at least five years past experience managing litigated
claims; Plaisance’s total experience consisted of four months. Pif. Dep.; Ex.
12; R.1-31-Ex.C,{ 11.

15

Plaisance was minimally qualified for the supervisory job he
applied for in Massachusetts. The person who received the
promotion, however, was considered to be better qualified for the
job. R.1-31-Ex. A, 49. Being African-American and being
minimally qualified for a job is insufficient, without more, to
create a reasonable inference of race discrimination. Pace v.
Southern Ry. System, 701 F.2d 1383, 1391 (11th Cir. 1983), cert.
denied, 464 U.S. 1018 (1983) (“A plaintiff, when faced with a
motion for summary judgment, cannot rely on attenuated
possibilities that a jury would infer a discriminatory motive, but
rather must come forward with sufficient evidence to establish a
prima facie case and respond sufficiently to any rebuttal by the
defendant to create a genuine issue of material fact.”). Plaisance
produced no such evidence and does not even know the
qualifications of the person who was promoted. Pif. Dep., pp.
132-33.

Moreover, Travelers’ articulated legitimate, non-
discriminatory reasons for selecting Ms. Mullins. See Brief in
Support of Defendant’s Motion For Summary Judgment, R.1-31-
25-28. Petitioner proffered no evidence of pretext; instead,
Plaisance’s argument seems to be “I was better qualified because
I say I was better qualified.” Of course, that is not the law; a
plaintiff’s subjective assessment of his own performance/
qualifications is insufficient to defeat a well-supported motion
for summary judgment. Mitchell v. Toledo Hospital, 964 F.2d at
585 (a plaintiff's denial of defendant’s articulated reason without
producing substantiation for the denial is insufficient to avoid
summary judgment.) Harding v. Gray, 63 Fair Emp. Prac. Cas.
(BNA) 475 (D.C. Cir. 1993) (allegations of superior
qualifications must be supported with facts in the record; “a mere
unsubstantiated allegation of superior qualifications creates no
‘genuine issue of fact’ and will not withstand summary
judgment.”) Carter v. Miami, 870 F.2d 578, 585 (11th Cir. 1989)
(“Conclusory allegations of discrimination, without more, are

16

not sufficient to raise an inference of pretext or intentional
discrimination where [an employer] has offered . . . extensive
evidence of legitimate, non-discriminatory reasons for its
actions.” (alteration in original) (citations omitted)).

D. Plaisance’s Claims Are Not Actionable Under 42 U.S.C.
§ 1981.

Plaisance’s employment with Travelers ended before
November 21, 1991,'° the effective date of the Civil Rights Act of
1991 (“CRA 1991”). Plaisance makes no allegation that any
adverse conduct on the part of Travelers occurred after November
21, 1991. In light of these facts, Plaisance’s § 1981" claim is
dismissible as a matter of law because, contrary to Plaisance’s
belief, this Court has expressly held that the CRA 1991 is not
retroactive as to pre-CRA 1991 conduct:

Even when congress intends to supersede a
rule of law embodied in one of our decisions
with what it views as a better rule established
in earlier decisions, its intent to reach conduct
preceding the “corrective amendment” must
clearly appear. We cannot say that such an
intent clearly appears with respect to § 101.
For this reason, and because it creates
liabilities that had no legal existence before
the Act was passed, § 101 does not apply to
pre-enactment conduct.

10. Plaisance resigned in January 1991. Pif. Dep.; Ex. 21.

11. Among other things, § 101 of the Civil Rights Act of 1991 enlarged
the range of behavior subject to § 1981 to include the “performance,
modification, and termination” of contracts. 42 U.S.C. § 1981(b).

17

Rivers v. Roadway Express, Inc., 114 S. Ct. 1510, 1519-1520
(1994) (emphasis added).

Prior to the enactment of CRA 1991, the applicability of 42
U.S.C. § 1981 was governed by Patterson v. McLean Credit
Union, 491 U.S. 164. In Patterson, the Supreme Court
significantly limited the applicability of 42 U.S.C. § 1981 to
employment discrimination cases. The Court reasoned that
“post-formation” conduct, conduct after the employee has been

‘\ired, is not actionable under § 1981: “[rJather such conduct is

actionable under the more expansive reach of Title VII of the
Civil Rights Act of 1964.” Patterson at 2374. Instead, § 1981
covers only alleged discriminatory conduct which occurs at the
initial formation of the contract; after initial formation, Title VII
applies. Plaisance’s allegations describe only the kinds of “post
formation ... incidents relating to the conditions of employment”
that were not actionable under § 1981 until after the passage of
CRA 1991. Id. Hence, the District Court’s grant of summary
judgment based on the inapplicability of § 198! was correct.
Moreover, based on the District Court’s ruling on the merits of
Plaisance’s Title VII discrimination claim, his § 1981 claim
would have been likewise dismissed on the same grounds.

18
CONCLUSION

To say that summary judgment in this case was appropriate is
an understatement. The Eleventh Circuit’s affirmance of the
District Court’s decision is not in conflict with that of other
Circuits, nor do the issues at hand involve important questions of
federal law that should be settled by this Court. This case is a
straightforward employment discrimination lawsuit, one which
was dismissed because it is devoid of factual support. The
resources of the Court should not be wasted on this case.
Plaintiff’s Petition should be denied.

Respectfully submitted,

John F. Wymer, Il

Counsel of Record

Deborah R. Kurzweil

POWELL, GOLDSTEIN, FRAZER
& MURPHY

Attorneys for Respondent

Sixteenth Floor

191 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 572-6600

ss eS oP ee eT

la

APPENDIX A— MAGISTRATE JUDGE’S REPORTAND
RECOMMENDATION AND ORDER OF THE UNITED
STATES DISTRICT COURT, N.D. GEV iRkGIA, ATLANTA
DIVISION DATED MAY 20, 1994
United States District Court,

N.D. Georgia,
Atlanta Division

Kenneth M. PLAISANCE,
Plaintiff,

Vv.

TRAVELERS INSURANCE COMPANY,
Defendant.

Civ. A. No. 1:93-cv-1021-RLV.

May 20, 1994.

* * *

Plaintiff appeared pro se.

John F. Wymer, Powell, Goldstein, Frazer & Murphy,
Atlanta GA, for defendant.

ORDER
VIN“: ‘G, Chief Judge.

After carefully considering the report and recommendation
of the magistrate judge, the court hereby adopts it as the opinion

2a
Appendix A

and order of this court. This court notes that the magistrate
judge’s conclusion that the 1991 amendments to the Civil Rights
Act are not retroactive has been confirmed by the United States
Supreme Court. See Landgraf v. USI Film Products, __ U.S. __,
114 S.Ct. 1522, 128 L.Ed.2d 229 (1994); Rivers v. Davison
U.S. __, 1148.Ct. 1483, 128 L.Ed.2d 229 (April 26, 1994).

SO ORDERED.

MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION

HARPER, United States Magistrate Judge.

Presently before the undersigned Magistrate Judge is
defendant’s motion for summary judgment filed January 20,
1994. (Docket No. 31). In a letter dated January 24,1994, the
Clerk of Court notified plaintiff of the filing of this motion, of his
duty to respond, and of the possible consequences of a failure to
respond. Plainti*f has in fact filed a written response to
defendant’: mo*<n. (Docket No. 74). Based upon these facts, the
undersigned Magistrate Judge fi.:cs that defendant’s motion for
summary judgment is now ripe ior review.

Under the Federal Rules of Civil Procedure, summary
judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833
F.2d 1507,1510 (11th Cir.1987). On summary judgment, the
parties must satisfy the following burdens of proof:

3a

Appendix A

The party moving for summary judgment
bears the initial arden of “identifying those
portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any,’
which it believes demonstrate the absence of
a genuine issue ©* material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317,323, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986) (quoting
Fed.R.Civ.P. 56(c)). An issue of fact is
“material” if it is a legal element of the claim,
as identified by the substantive law governing
the case, such that its presence or absence
might affect the outcome of the suit.
Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). It is “genuine” if the record taken as a
whole could lead a rational trier of fact to find
for the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d
538 (1986).

Once the mowing party meets this initial
burden, summary judgment is_ then
appropriate 2s a matter of law against the
nonmoving party “who fails to make a
showing sufficient to establish the existence
of an element essential to that party’s case,
and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322,
106 S.Ct. at 2552. In making a sufficient
showing, the nonmoving party must “go

4a
Appendix A

beyond the pleadings and by . . . affidavits, or
by the ‘depositions, answers to
interrogatories, and admissions on file,’
designate ‘specific facts showing that there is
a genuine issue for trial.’ ” Jd. at 324, 106
S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e). In
opposing summary judgment, the nonmoving
party may avail itself of all facts and
justifiable inferences in the record taken as a
whole. See United States v. Diebold, Inc., 369
U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
176 (1962). In reviewing whether the
nonmoving party has met its burden, the court
must stop short of weighing the evidence and
making credibility determinations of the truth
of the matter. Anderson, 477 U.S. at 255, 106
S.Ct. at 2513. Instead, “[t]he evidence of the
nonmovant is to be believed, and all
justifiable inferences are to be drawn in his
favor.” Id. (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-
09, 26 L.Ed.2d 142 (1970)). If, so viewed, a
rational trier of fact could find a verdict for
the nonmoving party under the substantive
evidential standard, the nonmoving party can
defeat summary judgment. Jd. 477 U.S. at
252, 106 S.Ct. at 2512.

Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-9 (11th
Cir.1992).

It should be noted that conclusory allegations based on mere
subjective beliefs do not create a genuine issue of material fact.

Sa

Appendix A

Carter v. Miami, 870 F.2d 578, 585 (11th Cir.1989); Ramsey v.
Leath, 706 F.2d 1166, 1170 (11th Cir.1983). See also, Earley v.
Champion International Corp., 907 F.2d 1077, 1081 (11th
Cir. 1990) (collecting cases). Specifically, in regards to plaintiff's
claim under Title VII of the Civil Rights Act of 1964, it is well
established that a Title VII plaintiff opposing a motion for
summary judgment must present significantly probative
evidence on the issue of discrimination to avoid summary
judgment. Young v. General Foods Corp., 840 F.2d 825 (11th Cir.
1988), cert. denied, 488 U.S. 1004,109 S.Ct. 782,102 L.Ed.2d
774 (1989); Grigsby v. Reynolds Metals Co., 821 F.2d 590 (11th
Cir. 1987). Reliance solely upon speculation and unsubstantiated
hearsay constitutes a failure to meet this burden. See, e.g, Palucki
v. Sears, Roebuck and Co., 879 F.2d 1568 (7th Cir. 1989) (“a party
to a lawsuit cannot ward off summary judgment with an affidavit
or deposition based on rumor or conjecture”); Benson v. Vermont
American Corp., 723 FSupp 1439 (M.D.Ala.1988)
(“inadmissible evidence offered in the form of a deposition,
cannot be considered by the court”), aff’d without opinion, 874
F.2d 820 (11th Cir.1989); Williams v. Housing Authority, 709
F.Supp. 1554 (M.D.Fla.1988) (“the court cannot base direct-
evidence analysis on hearsay testimony by plaintiff’), aff'd
without opinion, 872 F.2d 3 434 (11th Cir.1989).

In light of the above standard and resolving all evidentiary
conflicts in favor of plaintiff as non-movant for purposes of
considering defendant’s motion for summary judgment, the
undersigned finds that the following is an accurate summary of
the relevant facts underlying plaintiff’s claims. To the extent that
further facts are relevant to each of plaintiff’s claims, these facts
are discussed further below.

Plaintiff was initially hired by defendant into the position of
claims representative trainee on May 22, 1989. After completing

6a

Appendix A

his training period, plaintiff became an outside claims
representative in defendant’s Danvers, Massachusetts, office.
Plaintiff's starting salary was $27,000.00 per year.

In December 1989, plaintiff was promoted to the position of
serious bodily injury claims representative. This promotion
involved an increase in salary. In April 1990, plaintiff was
promoted once again, this time to the position of Technical
Specialist. Once again, this promotion involved an increase in
salary.

In January 1990, plaintiff informed Donald Johnson,
defendant’s Danvers office manager, of his desire to transfer to
another office. In particular, plaintiff expressed his interest in the
Atlanta office or another office in the South. Additionally,
plaintiff notified defendant’s Atlanta office manager, Douglas R.
Granberry, of his desire to transfer to that office and requested
that Granberry keep him informed regarding any openings in the
Atlanta office. At the time plaintiff informed Johnson of his
desire to transfer, Johnson expressed reticence to grant such a
transfer based upon his desire to keep plaintiff in the Danvers
office.

In July 1990, plaintiff visited defendant’s Atlanta office
while on vacation. Plaintiff discovered that the Atlanta office had
an opening for an individual in the position of Litigation
Technical Specialist. One of the requirements for the position
was a minimum of five years experience in the management of
claims and claims litigation.

Plaintiff asked the office receptionist about the position. The
individual informed plaintiff that defendant desired to fill the
position with an internal candidate. Plaintiff then informed the

Ta
Appendix A

receptionist that he was in fact an employee with defendant. The
receptionist then informed plaintiff that the period for
applications by internal candidates had expired; but, pursuant to
company policy, he could still submit his application and be
considered along with the external candidates.

Plaintiff applied for the position. Despite concerns about
plaintiff’s apparent lack of experience, Granberry interviewed
plaintiff for the position on July 3, 1990. During the course of this
interview, information provided by plaintiff confirmed the fact
that he lacked the five year experience requirement. The Atlanta
position was eventually awarded to an external candidate, Phillip
Krajec, a white male.

Plaintiff subsequently applied for a supervisor position in
the Danvers office. Maureen Mullins, a white female, was
eventually selected for this position.

In April 1990, plaintiff received a formal annual
performance review in which he rated as at least an average
performer. After Susan Lyle became plaintiff’s direct supervisor
in July 1990, plaintiff received two additional performance
reviews. In September 1990, plaintiff was noted as still
performing in at least a satisfactory manner. In November 1990,
some deficiencies were noted in plaintiff’s performance. These
two informal reviews of plaintiff’s performance, however, had
absolutely no effect on piaintiff’s pay, benefits, or employment
status.

On October 30, 1990, plaintiff filed a charge of
discrimination with the Equal Employment Opportunity
Commission (hereinafter EEOC) alleging that he was denied
both the Atlanta position and the Danvers supervisor position

8a

Appendix A

based upon his race (African American). On December 12, 1990,
plaintiff filed a second charge of discrimination with the EEOC
alleging that his poor November 1990 performance review was in
retaliation for his earlier filed EEOC charge.

In December 1990, plaintiff suffered injuries in an
automobile accident and subsequently was absent from work
with defendant. On January 29, 1991, plaintiff began work with
the New Orleans City Attorney's Office in New Orleans,
Louisiana. Shortly thereafter, plaintiff notified defendant of his
resignation of employment.

Mention should be made of at least one other event relevant
to plaintiff’s claims. Following his 1989 graduation from
Southern University Law School in Louisiana, plaintiff
unsuccessfully sat for the Louisiana State Bar Exam. Plaintiff,
however, passed this examination on his second attempt after
beginning his employment with defendant. In recognition of
plaintiff’s achievement, the Danvers office had a small
celebration. During the course of this office party, Johnson stated
that despite plaintiff’s accomplishment, he was “still a coon
ass.”"!

After exhausting his administrative remedies, plaintiff filed
a complaint in the United States District Court for the Eastern
District of Louisiana on December 18, 1992, alleging violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., as amended by the Civil Rights Act of 1991, 42 U.S.C.
§ 1981a; 42 U.S.C. § 1981; 42 U.S.C. § 1983; and the Fourteenth
Amendment to the United States Constitution. In his complaint,

1. Apparently, the term “coon ass” is generally considered a perjorative
reference to any individual of Cajun background. The use of this term in the context
of the present case is discussed further below.

9a
Appendix A

plaintiff alleges the same facts contained within his EEOC
charges of discrimination. Additionally, plaintiff alleges that he
was forced to work “in a place” and “under conditions” of bias
and prejudice among his co-workers and supervisors. Plaintiff
further alleges that he was treated differently than similarly
situated non-African American employees, particularly with
regard to transfers, promotions, and job assignments. Finally,
plaintiff alleges that he received pay which was far below the
market average for insurance claims representatives and less than
similarly situated white employees.

On May 13, 1993, plaintiff’s employment discrimination
action was transferred to the United States District Court for the
Northern District of Georgia. This court now considers
defendant’s motion for summary judgment. For purposes of
clarity, each of plaintiff’s claims is discussed separately below.

TITLE VII

As noted above, plaintiff’s complaint raises a number of
discrimination claims not contained in either of his EEOC
charges of discrimination. Additionally, plaintiff appears to raise
through his deposition testimony and his response to defendant’s
motion for summary judgment a claim of constructive discharge.
(Deposition of Kenneth Plaisance, hereinafter Plaisance Dep.., p.
144). Defendant argues that because these claims are outside of
the scope of plaintiff’s EEOC charges, summary judgment in
favor of defendant is appropriate with regard to these claims. For
the reasons set forth below, the undersigned Magistrate Judge
agrees.

It is well established that before initiation of a Title VII
lawsuit, a plaintiff must first file a charge alleging discrimination

10a
Appendix A

with the EEOC within 180 days after the alleged discrimination
occurred. Harris v. Norfolk & W.R. Co., 616 F.2d 377, 379 (8th
Cir.1980). A Title VII plaintiff is required to exhaust
administrative remedies before filing suit. This administrative
remedy prerequisite is mandatory, and may not be side-stepped
by a plaintiff East v. Romine, Inc., 518 F.2d 332, 335 (Sth
Cir.1975).

While there may be some liberality in the interpretation of
administrative prerequisites since EEOC charges are usually
filed by lay persons, the scope of a complaint is not to be extended
beyond the scope of the “EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (Sth Cir. 1970). As held by the Fifth Circuit Court of Appeals
in Sanchez held:

The logic of this rule is inherent in the
statutory scheme of Title VII. A charge of
discrimination is not filed as a preliminary to
a lawsuit. On the contrary, the purpose of the
charge of discrimination is to trigger the
investigatory and conciliatory procedures of
the EEOC. Once a charge has been filed, the
Commission carries out its investigatory
function and attempts to obtain voluntary
compliance with the law. Only if the EEOC
fails to achieve voluntary compliance will the
matter ever become the subject of court
action. . . . Within this statutory scheme, it is
only logical to limit the permissible scope of
the civil action to the scope of the EEOC
investigation which can reasonably be

lla
Appendix A

expected to grow out of the charge of dis
crimination.

Id.

Under Title VII’s comprehensive administrative scheme, the
EEOC “should have the first opportunity to investigate the
alleged discriminatory practices to permit it to perform its role in
obtaining voluntary compliance and promotion of conciliation
efforts.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929
(11th Cir.1983). Thus, a plaintiff must fulfill the statutory
prerequisite of filing a timely charge of discrimination with the
EEOC before a lawsuit can be instituted. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234
(1982): Jackson v. Seaboard Coast Line Railroad Co., 678 F.2d
992 (11th Cir.1982); Buffington v. General Time Corp., 677
F.Supp. 1186, 1192 (M.D.Ga.1988). “[A]n aggrieved employee
may not bypass the administrative process with a direct appeal to
the courts.” Buffington, 677 F.Supp. at 1192; Beverly v. Lone Star
Lead Constr. Corp., 437 F.2d 1136, 1139-40 (Sth Cir.1971);
Eastwood v. Victor Temporaries, 441 F.Supp. 51, 52 (N.D.Ga.
1977).

The standard for determining whether claims omitted from
the EEOC charge yet subsequently raised in a lawsuit may be
maintained in the lawsuit is whether the subsequently raised
claims are “reasonably related” to the original claims raised in the
EEOC charge. Sanchez, 431 F.2d at 466; Evans, 696 F.2d at 929.
If the subsequently raised claims do not meet this test, the district
court is precluded from hearing them. Buffington, 677 F.Supp. at
1192; Clements v. H. Goodman & Sons, Inc., 25 Fair Empl. Prac.
Cas. (BNA) 511, 512-13, 1981 WL 161 (N.D.Ga.1981).

12a
Appendix A

After careful consideration, the undersigned finds that the
additional claims raised by plaintiff in his complaint and his
deposition are not sufficiently “reasonably related” to the claims
raised in his EEOC charges to merit their consideration.
Consideration of these claims on their merits would undermine
the goal of voluntary reconciliation embodied by Title VII.
Accordingly, the undersigned Magistrate Judge hereby
RECOMMENDS that defendant’s motion for summary judgment
be GRANTED as it relates to any and all Title VII claims not
included within plaintiff's EEOC charges of discrimination.

A Title VII plaintiff may demonstrate discriminatory intent
through either direct or indirect evidence. Direct evidence
consists of the actions or remarks of an employer reflecting a
discriminatory attitude. Wall v. Trust Company of Georgia, 946
F.2d 805, 809-10 (11th Cir.1991); Hill v. Metropolitan Atlanta
Rapid Transit Authority, 841 F.2d 1533, 1539 (11th Cir.1988),
modified, 848 F.2d 1522 (11th Cir.1988). See also, Bell v.
Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983),
cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344
(1984). Indirect evidence may be demonstrated through the
framework established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973) and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). For example, an individual may produce indirect
evidence of a discriminatory failure to hire by establishing that he
is a member of a protected group and that he “applied for an
available position for which [he] was qualified, but was rejected
under circumstances which give rise to an inference of unlawful
discrimination.” Burdine, 450 U.S. at 253,101 S.Ct. at 1094. This
framework, however, is flexible, and can be shaped to fit
employment practices other than failure to hire.

13a

Appendix A

If a plaintiff presents direct evidence of discrimination, the
burden of proof shifts to defendant to establish that it would have
reached the identical employment decision absent unlawful
considerations. See, Wall, 946 F.2d at { 0 (citing, Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104
L.Ed.2d 268 (1989)).

Conversely, where the plaintiff has established a prima facie
case of discrimination through indirect evidence a burden of
production shifts to the employer “to articulate some legitimate,
non-discriminatory reason for the employee’s rejection.”
McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. If
the defendant carries this burden, the plaintiff must then prove by
a preponderance of the evidence that the legitimate reasons
offered by the defendant were merely pretexts for discrimination.
Id. at 804, 93 S.Ct. at 1825; Wall, 946 F.2d at 809; Perryman v.
Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983). If
the trier of fact rejects defendant's proffered reason as incredible,
this rejection, coupled with the elements of plaintiff's prima facie
case, may alone support a finding of pretext. St. Mary’s Honor
Center v. Hicks, __ U.S. __, __, 113 S.Ct. 2742, 2748,125
L.Ed.2d 407 (1993).

The establishment of a prima facie case gives rise to a
rebuttable presumption that the employer unlawfully
discriminated against the plaintiff. Burdine, 450 U.S. at 254,101
S.Ct. at 1092; Thompkins v. Morris Brown College, 752 F.2d 558,
561 (11th Cir.1985). In evaluating whether a plaintiff has
satisfied the initial burden of a prima facie case, the central
inquiry is whether the circumstantial evidence presented is
sufficient to create an inference, ie., a rebuttable presumption,
that the employer’s personnel decision was based on
impermissible considerations. Furnco Construction Co. v.

l4a
Appendix A

Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957
(1978); International Brotherkood of Teamsters v. United States,
431 U.S. 324, 358, 97 S.Ct. 1843, 166, 52 L.Ed.2d 396 (1977).
See also, Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773-75
(llth Cir.1982), appeal after remand, 744 F.2d 768 (11th
Cir. 1984).

A. The Atlanta Position.

Plaintiff alleges that defendant’s selection of Krajec instead
of plaintiff for the Atlanta Litigation Technical Specialist
position was based at least in part upon plaintiff’s race in
violation of Title VII. In order to establish his prima facie case of
discrimination in promotion, plaintiff must establish: (1) he is a
member of a protected class; (2) he was qualified for the position
for which he applied; (3) he was rejected despite his
qualifications; and (4) an equally or less qualified individual
outside of his protected class was selected for the challenged
promotion. See, e.g., Wu v. Thomas, 847 F.2d 1480, 1483 (11th
Cir.1988), cert. denied, Wu v. Bd. of Trustees, 490 U.S. 1006, 109
S.Ct. 1641, 104 L.Ed.2d 156 (1989); Perryman v. Johnson
Products, Inc., 698 F.2d 1138,1142 n. 7 (11th Cir. 1983). For the
reasons set forth below, the undersigned finds that plaintiff has
failed to produce at least some evidence tending to establish each
of the required elements of his prima facie case, and that
summary judgment in favor of defendant is therefore appropriate
with regard to this claim.

It is undisputed that plaintiff is a member of a protected
class, that he applied for the Atlanta position, and that he was
rejected for this promotion. Plaintiff, however, has failed to
produce any evidence which would tend to support his claim that
he was qualified for the position for which he applied. Likewise,

15a

Appendix A

plaintiff has failed to produce any evidence which would tend to
support his claim that Krajec was equally or less qualified for the
position in question.

Plaintiff admits that one of the requirements for the Atlanta
position was a minimum of five years experience in the
management of claims and the litigation of claims. (Plaisance
Dep., pp. 100-101, 108). It is undisputed that plaintiff failed to
meet this experience requirement. (Plaisance Dep., pp. 100-101,
108; Affidavit of Douglas R. Granberry, hereinafter Granberry
Aff., 1] 4-5; Affidavit of Thea C. Jones, hereinafter Jones Aff.,
{I 10-11). Accordingly, the undersigned finds that plaintiff has
failed to produce any evidence upon which a reasonable trier of
fact could base a determination that plaintiff has met his burden
of establishing that he was qualified for the position in question.
Accordingly, as plaintiff has failed to establish his qualifications
by any evidence, defendant is entitled to summary judgment on
this claim. See, Ferguson v. Veterans Administration, 723 F.2d
871, 873 (11th Cir. 1984), cert. denied, 469 U.S. 1072, 105 S.Ct.
563, 83 L.Ed.2d 504 (1984).

Additionally, plaintiff has failed to produce any evidence
which would tend to support his allegation that Krajec was less
qualified for the position. In fact, plaintiff admits that he knows
nothing of Krajec’s qualifications for the position in question.
(Krajec’s Dep., pp. 102-103). Accordingly, plaintiff has offered
absolutely no evidence which would support a reasonable trier of
fact’s determination that Krajec was in fact equally or less
qualified for the position.

The undersigned notes that in his response to defendant’s
motion, plaintiff makes several arguments in favor of rejecting
defendant’s motion. First, plaintiff challenges defendant's

16a
Appendix A

decision based upon Granberry’s failure to notify him of an
opening in the Atlanta office so that he could apply along with the
internal candidates. Plaintiff, however, admits that no formal
mechanism existed for inter-office job posting with defendant.
(Plaisance Dep., pp. 105-106, 118). Furthermore, plaintiff has not
produced any, evidence suggesting that such information was
provided to individuals outside of his protected class who were
seeking similar transfers. Additionally, plaintiff has not produced
any evidence which would tend to suggest that his “insider”
status would somehow overcome his lack of qualifications for the
position. Instead, plaintiff simply states that defendant should
have had a preference for internal candidates and that this
preference would support his selection over a more qualified
external candidate. (Plaisance Dep., p. 107).

As noted by the Eleventh Circuit Court of Appeals in Nix v.
WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th
Cir. 1984), “Title VII is not a shield against harsh treatment at the
workplace.” (quoting, Jackson v. Killeen, 654 F.2d 1181,1186
(Sth Cir.1981). Instead, a claim of Title VII discrimination must
fall absent direct or circumstantial evidence of discriminatory
intent. Jd. Accordingly, the undersigned finds that this argument
does not support plaintiff’s position.

Additionally, plaintiff suggests in his deposition that the five
year experience requirement has a disparate impact on minority
applicants and was perhaps set in place for that very purpose.
(Plaisance’s Dep., p. 109). Plaintiff’s argument on this point,
however, consists of nothing more than conclusory allegations
and is therefore inappropriate to overcome defendant’s motion
for summary judgment. Carter v. Miami, supra. Specifically,
plaintiff has failed to produce any evidence which would tend to
establish that the challenged requirement results in the selection

17a
Appendix A

of individuals in a “significantly discriminatory pattern.”
Accordingly, plaintiff has failed to establish a prima facie case of
disparate impact discrimination. See, Dothard v. Rawlinson, 433
U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). Also, as
plaintiff has failed to allege disparate impact discrimination in his
complaint, this court should not consider such a claim at this
point. Wu, 847 F.2d at 1484.

Finally, the undersigned notes that plaintiff has failed to
produce any direct evidence of discrimination with regard to the
challenged Atlanta promotion decision. Plaintiff states that the
only allegedly racial comment made by defendant’s agents was
Johnson’s “coon ass” comment made at plaintiff’s office party. It
is undisputed that Granberry, and not Johnson, was responsible
for the selection of Krajec instead of plaintiff for the Atlanta
position. (Granberry Aff., { 3; Affidavit of Donald A. Johnson,
hereinafter Johnson Aff., { 8). As such, Johnson’s statement is
insufficient to establish direct evidence of discrimination. See,
e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989) (plurality opinion); Grigsby, 821 F.2d at
596.

For the reasons set forth above, the undersigned Magistrate
Judge finds that plaintiff has failed to establish either direct or
indirect evidence of discrimination under either the disparate
treatment or disparate impact Title VII schemes. Accordingly, the
undersigned Magistrate Judge hereby RECOMMENDS that
defendant’s motion for summary judgment be GRANTED as it
relates to this particular claim.

B. The Danvers Position.

Plaintiff’s challenge to his failure to obtain the Danvers

18a
Appendix A

supervisor position is haunted by the same deficiency in that
plaintiff has failed to produce any evidence which would tend to
support his allegation that Mullins was either equally or less
qualified. Instead, plaintiff once again admits that he has no
knowledge or evidence with regard to Mullins’ qualifications.
(Plaisance’s Dep., pp. 131-133, 164-165). Accordingly, the
undersigned finds that plaintiff has failed to produce at least some
probative evidence tending to establish each element of his prima
facie case and has therefore failed to produce sufficient indirect
evidence to allow him to survive defendant’s motion for
summary judgment.

Additionally, the undersigned notes that Johnson’s alleged
“coon ass” comment fails to establish some direct evidence of
discrimination allowing plaintiff to survive defendant’s motion
for summary judgment.’ First, it is not at all clear that this
comment referred to plaintiff’s race as an African American.
(Plaisance Dep., pp. 80-81). It is clear, however, that this isolated
comment is the only statement by defendant or its agents which
plaintiff refers to as support for his direct evidence claim.
(Plaisance Dep., pp. 83-84). Just as statements by non-decision
makers are insufficient to establish direct evidence of
discrimination, isolated or stray comments made by the actual
decision maker but completely unrelated to the challenged
employment action do not constitute direct evidence of
discrimination. See, e.g., Price Waterhouse v. Hopkins, supra.

For the reasons set forth above, the undersigned Magistrate
Judge finds that plaintiff has failed to produce evidence which
would allow a reasonable trier of fact to find that plaintiff had

2. Johnson flatly denies having made this comment. (Johnson Aff.,{ 15). For
purposes of considering the merits of defendant's motion for summary judgment,
however, the undersigned assumes that this comment was made.

19a
Appendix A

established discrimination through either direct or indirect
evidence. Accordingly, the undersigned RECOMMENDS that
defendant’s motion for summary judgment be GRANTED as it
relates to this claim.

C. Retaliatory Performance Rating.

The McDonnell Douglas framework for evaluating claims of
Title VII discrimination has been set forth at great lengths above.
Courts have established a similar three-tier framework for
evaluating claims of retaliation under Title VII. Plaintiff is first
required to establish a prima facie case of retaliation.
Specifically, plaintiff must establish that (1) he has engaged in
statutorily protected behavior; (2) the employer has taken an
adverse employment action; and (3) a causal link exists between
plaintiff's protected activity and the employer’s conduct. Weaver
v. Casa Gallardo, Inc., 922 F.2d 1515, 1520 (11th Cir.1991);
Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-601 (11th
Cir.1986); McCollum v. Bolger, 794 F.2d 602 (11th Cir.1986),
cert. denied, 479 U.S. 1034, 107 S.Ct. 883, 93 L.Ed.2d 836
(1987); Doyal v. Marsh, 777 F.2d 1526, 1534 (11th Cir. 1985);
Hamm v. Members of Board of Regents, 708 F.2d 647, 654 (11th
Cir.1983); Canino v. United States EEOC, 707 F.2d 468, 471
(11th Cir.1983).

As noted above, plaintiff has clearly established that he is a
member of a protected class. However, plaintiff has failed to
establish any evidence tending to support the remaining two
elements of his prima facie case. The specific deficiencies of
plaintiff’s evidence are discussed below.

As noted above, an essential element of plaintiff's prima
facie case of retaliation is the establishment of some evidence

20a
Appendix A

that he has been subject to an adverse employment action. This
element requires at least some showing of a negative impact upon
plaintiff. Such a result is clearly indicated by the Eleventh Circuit
Court of Appeals’ decision in Morgan v. City of Jasper, 959 F.2d
1542, 1547 (11th Cir.1992), in which the court restates this
element as a requirement that plaintiff demonstrate he “was
disadvantaged by an action of the employer simultaneously with
or subject to [his protected activity].” (Quoting, Whatley v.
MARTA, 632 F.2d 1325,1328 (Sth Cir.1980)). See also, Jordan v.
Wilson, 851 F.2d 1290, 1292-93 (11th Cir. 1988).

Defendant argues that the challenged November 1990
evaluation was simply an informal review that had no affect upon
plaintiff’s employment or compensation. (Affidavit of Susan
Lyle, hereinafter Lyle Aff., {7 5, 9). Plaintiff states that he is
unaware of any difference between formal and inforrnal
evaluations by defendant. (Plaisance Dep., p. 76). Plaintiff does
admit, however, that this negative evaluation had absolutely no
effect upon his employment or compensation. (Plaisance Dep.,
pp. 138-39). As plaintiff has failed to establish a “materially
adverse change” in his employment by any probative evidence,
the undersigned finds that plaintiff has failed to satisfy the
adverse employment action element of his prima facie case. See
also, Crady v. Liberty National Bank & Trust Co. of Indiana, 993
F.2d 132, 135 (7th Cir.1993); Coney v. Department of Human
Resources of the State of Georgia, 787 F.Supp. 1434, 1442
(M.D.Ga.1992).

Assuming arguendo, however, that plaintiff had established
the presence of an adverse employment action, plaintiff has still
failed to establish any evidence which would tend to establish a
causal link between his filing of two EEOC charges and his
negative evaluation. It is the established precedent of this circuit

21a
Appendix A

that whenever an employee alleges that an adverse employment
action has been taken in reprisal for the employee engaging in
protected activity, it is the burden of the employee to prove that
the employer had actual knowledge of such activity. See, EEOC v.
Carolina Freight Carriers Corp., 723 F.Supp. 734, 748
(S.D.Fla.1989). See also, Webster v. Department of the Army, 911
F.2d 679, 689 (D.C.Cir.1990), cert. denied, 502 U.S. 861, 112
S.Ct. 181, 116 L.Ed.2d 143 (1991). Plaintiff, however, states that
he does not know if Lyle was aware of his filing of the EEOC
charges at the time she completed his challenged performance
evaluation and that she may have in fact been unaware of his
protected activity. (Plaisance Dep., pp. 138,173). The undisputed
testimony of both Johnson and Lyle establish that they had no
knowledge of plaintiff’s EEOC charges until after he had
resigned his employment. (Johnson Aff., { 12; Lyle Aff., { 11).

Rather than dispute this fact, plaintiff simply suggests
through conclusory allegations in his deposition that Lyle was
somehow directed by her supervisors to conduct the challenged
evaluation. As noted above, however, such conclusory
allegations are insufficient to overcome defendant’s motion for
summary judgment. Carter v. Miami, supra. Furthermore,
plaintiff has produced absolutely no evidence that Lyle’s
supervisors were aware of his protected activity. Accordingly,
this argument is of no support to plaintiff’s claim.

Based upon the above facts, the undersigned Magistrate
Judge finds that plaintiff has failed to produce any probative
evidence tending to establish the required element of causation
Accordingly, the undersigned Magistrate Judge hereby
RECOMMENDS that defendant’s motion for summary judgment
be GRANTED as it relates to this claim. In summary, the
undersigned finds that plaintiff has failed to establish evidence

22a

Appendix A

supporting a prima facie case with regard to any of his Title VII
claims. Accordingly, the undersigned RECOMMENDS that
defendant’s motion for summary judgment be GRANTED as it
relates to each of these claims.

42 U.S.C. § 1981 AND THE CIVIL RIGHTS ACT OF 1991

A Section 1981 claim concerns discrimination in the making
and enforcement of contracts. The code at 42 U.S.C. § 1981

provides:

All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws
and proceedings for the security of persons
and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of
every kind, and to no other.

The United States Supreme Court imposed limitations on
Section 1981 actions in Patterson v. McLean Credit Union, 491
U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson,
the Supreme Court noted the narrow wording of Section 1981 and
held that:

Section 1981 cannot be construed as a general
proscription of racial discrimination in all
aspects of contract relations, for it expressly
prohibits discrimination only in the making
and enforcement of contracts. . . . [T]he right

23a
Appendix A

to make contracts does not extend, as a matter
of either logic or semantics, to conduct by the
employer after the contract has been
established... .

Id. 491 U.S. at 176-77,109 S.Ct. at 2372-73. Accordingly, the
Supreme Court denied plaintiff’s racial harassment claim as
outside the scope of Section 1981.

In Patterson v. McLean Credit Union the Supreme Court
ruled that post-contract formation allegations of racially
discriminatory conduct are not actionable under 42 U.S.C.
§ 1981, since § 1981 only guards against racial discrimination in
the “making” of contracts and the right to “enforce” the contract
through legal processes. Patterson, 491 U.S. at 176-79, 109 S.Ct.
at 2372-2374. In order to state a claim cognizable under
§ 1981,“the plaintiff’s claim must involve improper ‘conduct at
the initial formation of the contract’ or ‘conduct which impairs
that right to enforce contract obligations through legal process.’ ”
Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805,
807 (5th Cir.1990) (quoting Patterson, 491 U.S. at 179, 109 S.Ct.
at 2374).

According to the Patterson Court, in the employment
context, post-formation conduct which by its nature involved “in
effect the opportunity to enter into a new contract with the
employer” was actionable under 42 U.S.C. § 1981. Patterson,
491 U.S. at 185, 109 S.Ct. at 2377. A claim that an employer
failed to promote an employee because of the employee’s race is
within the reach of § 1981 when the promotion “rises to the level
of an opportunity for a new and distinct relation between
employee and employer.” Jd.

24a

Appendix A

As the Eleventh Circuit stated in Weaver v. Casa Gallardo,
Inc., 922 F.2d 1515, 1520 (11th Cir.1991):

Patterson’s discussion of § 1981 makes
the focus of the test fairly clear: a plaintiff's
failure-to-promote claim is cognizable under
§ 1981 if the promotion would have entailed a
new contractual relationship between the
employee and the employer, “involving in
effect the opportunity to enter into a new
contract with the employer.” (Footnote
omitted).

See also, Harrison v. Associates Corp. of North America, 917
F.2d 195, 198 (Sth Cir. 1990).

While the Supreme Court’s decision in Patterson may have
made the focus of the test to be applied by the circuit courts clear,
it has done little to guide the application of this test to specific fact
situations. As noted in Guliford v. Beech Aircraft Corp., 768
F.Supp. 313 (D.Kan.1991), some courts have found that virtually
any change in the employment relationship will meet the “new
contract” test of Patterson while other courts have held that “the
change in the employment relationship must be a ‘fundamental’
one as distinguished from garden-variety or routine
advancements or raises.” Guliford, 768 F.Supp. at 318-319
(collecting cases).

It appears that the stricter interpretation of Patterson has
been adopted by the Eleventh Circuit. In Wall v. Trust Company of
Georgia, 946 F.2d 805 (llth Cir.1991), the court rejected
plaintiff’s contention that a promotion from the position of
customer service representative to that of tax analyst rose to the

25a
Appendix A

level of change required by Patterson even though there was a
significant change in job duties. In Wall, the court noted that:

The court stated in Patterson that “only
where the promotion rises to the level of an
opportunity for a new and distinct relation
between the employee and the employer is
such a claim actionable under section 1981,”
citing Hishon v. King and Spalding, 467 U.S.
69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)
(refusal of law firm to accept associate into
partnership) (Title VII). 491 U.S. at 185, 109
S.Ct. at 2377. Effectively, Patterson held that
in the promotion context, a new contract is
not made for purposes of section 1981 unless
such a new and distinct relationship would
flow from the promotion. Bennun u Rutgers
State Univ., 941 F.2d 154 (3rd Cir.1991)
(denying relief for nonpromotion from
tenured associate professor to full professor
based on application of Patterson test).

We disagree with Wall that the promotion
here rises above the bright line of a relation
sufficiently “new and distinct” to qualify
under the Patterson test. See Weaver v. Casa
Gallardo, Inc., 922 F.2d 1515, 1519-20 (11th
Cir.1991) (remanding to apply “new

contract” test). The customer service
representative [**8] and tax analyst positions
are both nonexempt salaried jobs, are
relatively equal in grade (118 versus 119),
provide identical benefits and compensation,

26a

Appendix A

and are covered by the same policies and
procedures.

Wall, 946 F.2d at 808.

After Wall, however, the specific question of whether the
addition of certain supervisory duties constitutes a sufficient
change in the employment relationship to trigger a § 1981 suit is
not entirely resolved. One reason that the court rejected
plaintiff's claim was that “the change would not have involved
the elevation of Wall to a management position which would be
considered a new contract, analogous to the change in status in
Hishon, cited by means of example in Patterson.” Wall, 946 F.2d
at 808. In support of this proposition, the court cited two cases:
Harrison v. Associates Corp. of North America, 917 F.2d 195 (Sth
Cir.1990) and Mallory v. Booth Refrigeration Supply Co., Inc.,
882 F.2d 908 (4th Cir.1989). Because it appears that the Eleventh
Circuit Court of Appeals has determined that the bright line of
Patterson falls somewhere between these two fact situations, a
brief discussion of these decisions is instructive in the present
case.

In Mallory v. Booth, the denial of a promotion which would
have elevated plaintiff from the position of clerk to supervisor
was held to create a new contractual relationship for purposes of
applying § 1981. Mallory, 882 F.2d at 910. The court’s reliance
on Harrison, however, would seem to place severe restrictions on
the general principle that the addition of supervisory duties alone
constitutes a change in employment relationships significant to
trigger a § 1981 suit. In Harrison, plaintiff was denied a
promotion from CRT operator to CRT lead operator. In rejecting
plaintiff’s claim that this denial of promotion constituted a
violation of § 1981, the court stated that while the lead operator
was responsible for assigning the priority to various work and in

27a

Appendix A

assisting other operators as needed, lead operators were not
automatically entitled to a raise in pay and neither did they have
general supervisory duties such as hiring and firing of other
employees. Harrison, 917 F.2d at 196.

In the present case, plaintiff has produced no evidence that
either the Atlanta position or the Danvers supervisor position
would have afforded him “an opportunity for a new and distinct
relationship” with his employer. Instead, the undersigned notes
that the evidence in this case tends to establish a certain similarity
between plaintiff’s position as Technical Specialist and the
Atlanta position of Litigation Technical Specialist. Finally, the
undisputed evidence in this case establishes that the Danvers
supervisor position was equivalent to plaintiff’s position in both
salary grade and actual compensation, and that Mullins actually
had a smaller salary in the supervisor position that plaintiff had in
his Technical Specialist position. (Johnson Aff., { 11).
Accordingly, the undersigned finds that these two claims are
insufficient as a matter of law to support a 42 U.S.C. § 1981
claim. Additionally, plaintiff’s retaliation claim is clearly
insufficient to support a 42 U.S.C. § 1981 claim. Sherman v.
Burke Contracting, Inc., 891 F.2d 1527 (11th Cir.1990), cert.
denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 317 (1990).

Because the undersigned finds that plaintiff’s failure to
promote claims and retaliation claim may not properly be brought
under 42 U.S.C. § 1981 as originally enacted, defendant’s motion
for summary judgment on this issue should be granted unless a
determination is made that the provisions of the Civil Rights Act
of 1991 which enlarge the scope of Section 1981 claims should be
applied retroactively to the events referred to in plaintiff’s
complaint, events occurring prior to the enactment of the 1991
Act.

28a
Appendix A

The Eleventh Circuit Court of Appeals addressed the
question of the potential retroactive application of the Civil
Rights Act of 1991 in Baynes v. AT & T Technologies, Inc, 976
F.2d 1370 (11th Cir.1992). In Baynes, the court noted special
difficulties in determining the potential retroactive application of
such statutes absent clear legislative guidance. After finding that
the issue of retroactivity could not be decided based upon the
legislative history of the Civil Rights Act of 1991, the court stated
that:

Supreme Court precedent offers little more
help than does the Act and its legislative
history. The Court has so far declined to
resolve the conflict in its own rules of
presumptions of statutory retroactivity.
Compare Bradley v. School Board of
Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006,
2016, 40 L.Ed.2d 476 (1974) (presumption of
retroactivity), with Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct.
468, 471, 102 L.Ed.2d 493 (1988)
(presumption of prospectiveness); see also,
Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U.S. 827, 110 S.Ct. 1570,
1577, 108 L.Ed.2d 842 (1990) (declining to
resolve the “apparent tension” between the
Bradley and Bowen lines of cases).

Baynes, 976 F.2d at 1372-73.

The court quickly noted that under the stricter rule of Bowen,
the 1991 Civil Rights Act was clearly not retroactive in effect, as
the cloudy legislative history was insufficient to overcome the

29a
Appendix A

presumption against retroactivity. Baynes, 976 F.2d at 1373. The
court, however, noted that historically it had adhered to the more
liberal rule of interpretation contained within the Bradley line of
cases. Ultimately, this distinction was meaningless as the court
determined that even given the Bradley presumption of
retroactivity, the Civil Rights Act of 1991 has only prospective
application.

As noted by the court, the Bradley approach presumes
retroactive application of a statute “unless doing so would result
in manifest injustice or there is statutory direction or legislative
history to the contrary.” Bradley, 416 U.S. at 711, 94 S.Ct. at
2016. The court then continued, opining that:

To determine whether “manifest injustice”
would result, we look at three elements: “(a)
the nature and identity of the parties, (b) the
nature of their rights, and (c) the nature of the
impact of the change in law upon those
rights.”

Baynes, 976 F.2d at 1373 (citing Bradley, +16 U.S. at 717, 94
S.Ct. at 2019). After careful consideration of the nature of
discrimination suits, the court held that each of these three

elements argued for only prospective application of the Civil
Rights Act of 1991.

As to the first element, the court noted that employment
discrimination cases are inevitably private disputes between
individuals and not matters of “great national concern.” Baynes,
976 F.2d at 1374. Therefore, the court found that the first element
of the Bradley test weighed in favor of only prospective
application of the Act.

30a
Appendix A

As to the second prong of the Bradley analysis, the court
noted that the Civil Rights Act of 1991 created both remedial and
substantive changes to the provisions of 42 U.S.C. § 1981. Given
this fact, the court noted that “[bJecause the Act changes
substantive obligations as well as remedial or procedural rights,
however, we believe the nature of the parties’ rights weighs
against retroactivity in this case.” Baynes, 976 F.2d at 1375
(citing, United States v. Fernandez-Toledo, 749 F.2d 703, 705
(11th Cir.1985)). Specifically, the court referred to the 1991 Act’s
extension of the coverage of 42 U.S.C. § 1981 as a plainly
substantive change. Referring to the Seventh Circuit Court of
Appeals’ decision in Luddington v. Indiana Bell Telephone Co.,
966 F.2d 225, 229 (7th Cir. 1992) (Posner, J.), the court stated that
“w]e agree with the Seventh Circuit that, however characterized,
extension of Section 1981 liability mandates a substantial
increase in employer’s level of care that forces them to adjust
their behavior in response to the statutory change.” Baynes, 976
F.2d at 1374 (n. 5).

This concern expressed by the court spills over into its
discussion of the third prong of the Bradley analysis. In setting
forth the proper framework for analysis of this prong of the
Bradley test, the court stated that “[t]he third Bradley
consideration, the effect of the change in law upon the parties’
rights, requires that we consider whether retroactive application
of the Act unfairly imposes “a new and unanticipated obligation”
on the parties.” Baynes, 976 F.2d at 1375 (quoting Bradley, 416
U.S. at 720, 94 S.Ct. at 2021). Specific to the question of the
retroactive application of the Civil Rights Act of 1991, the court
declared that: .

Although the basic norm of _ non-
discrimination is unchanged by the Act, we

3la
; Appendix A

believe that imposing potential liability
damages for post-hiring behavior under
Section 1981, as opposed to the lesser Title
VII remedies, would significantly and
‘ unfairly have an effect on the parties.

Baynes, 976 F.2d at 1375.

: Despite the clarity of the court’s decision in Baynes, this
i decision is not directly dispositive of the issue of retroactivity in
H the present case. In Baynes, judgment had been entered and an
appeal was pending at the time the Civil Rights Act of 1991
became effective. In the present case, plaintiff filed his complaint
approximately nine months prior to the effective date of the 1991
Act and alleged discriminatory conduct occurring prior to the
adoption of the Act. However, unlike the case in Baynes,
litigation had not been concluded prior to the effective date of the
1991 Act. In the concluding sections of its opinion, the Baynes
court stated that:

In addition, this case has been litigated for
two and one-half years through a nonjury trial
on the merits, all in reliance on prior law. In
circumstances like these, we conclude that
the affect of the statutory change strongly
mitigates against retroactivity.

For these reasons, we hold that those parts of
the Civil Rights Act of 1991 in controversy in
this case do not apply retroactively in cases in
which Judgement was entered before the
Act’s pertinent effective date. Our holding is
consistent with those of most of the other

32a
Appendix A

circuits that have addressed the retroactivity
of the Civil Rights Act of 1991.

Baynes, 976 F.2d at 1375.

The Baynes court, however, did address the question of
retroactivity in other types of cases in the form of a footnote. The
court states that “we address no other kinds of cases, but neither
do we imply that the Act would apply retroactively in other
circumstances.” Baynes, 976 F.2d at 1372 (n. 1). The question
remains, therefore, whether or not the Eleventh Circuit Court of
Appeals’ decision in Baynes may be properly extended to apply
to cases filed before the effective date of the 1991 Act, alleging
acts of discrimination occurring prior to the 1991 Act’s adoption,
but remaining open at the time that the Act became law. For the
reasons discussed below, the undersigned finds that the decision
in Baynes is readily applicable in these cases.

First, the undersigned notes that the Baynes court’s decision
that retroactive application of the 1991 Act would “result in
manifest injustice” rests largely on the realization that retroactive
application would unfairly impact employers in denying them the
right to conform their actions to the law in light of expected
penalties for non-conformance. In short, retroactive application
would deprive employers of the ability to adjust their conduct to
differing levels of care created by the new Act. See, Baynes, 976
F.2d at 1374 (n. 5). These concerns would be equally applicable in
any case where the challenged conduct on the part of an employer
occurred prior to the enactment date of the remedial and
substantive changes in discrimination law contained within the
1991 Act.

Second, the undersigned notes that the Baynes court cited

33a
Appendix A

with approval the Seventh Circuit Court of Appeals’ decision in
Luddington v. Indiana Bell Telephone Co., supra. In Luddington,
the court undertook a fairly exhaustive discussion of the various
situations in which a statute might be applied retroactively. The
court noted that:

A statute could be applied (1) to cases filed
: and completed before the effective date of the
statute that arise from acts committed before
| that effective date, (2) to cases filed before the
effective date of the statute, but not
completed by that date, that arise from acts
: committed before that date, (3) to cases filed
after the effective date that arise from acts
committed before that date, (4) to cases in any
| of these categories but in which the conduct
| complained of straddled the effective date of
the statute, or (5) only to cases filed after the
effective date that arise from acts committed
entirely after that date. The first four types of
application would be retroactive to varying
degrees; the fifth wouldn’t be retroactive at
all.

Luddington, 966 F.2d at 227.
In holding that retroactive application of the 1991 Act in

situations where the challenged conduct occurred prior to the
effective date of the Act would be unjust, the court stated that:

It could be argued that since the underlying
norm of non-discrimination was not new,
employers should not be heard complaining

ECE IIR Ta IE hh A, SEE OBE Ne cae EL ROA Siac SIRT lee"

34a
Appendix A

that the norm has now been given teeth. But
many of us would squawk very loudly indeed
if people with unpaid parking tickets were
made retroactively liable to life
imprisonment; and in fact such a change
although purely remedial would violate the ex
post facto clause. Miller v. Florida, 482 U.S.
423, 107 S.Ct. 2446, 96 L.Ed.2d 351(1987);
Sequoia Books, Inc. v. Ingemunson, 901 F.2d
630, 639 (7th Cir. 1990). The amount of care
that individuals and firms take to avoid
subjecting themselves to liability whether
civil or criminal is a function of the severity
of the sanction, and when the severity is
increased they are entitled to an opportunity
to readjust their level of care in light of the
new environment created by the change. That
is the philosophy behind the ex post facto
clause but also behind the interpretive
principle that presumes that a new civil
Statute applies only to conduct that occurs
after its effective date.

Luddington, 966 F.2d at 229. This language, noted with approval
by the court in Baynes, indicates that the Baynes decision
properly should be extended to any case in which the challenged
employment conduct occurred prior to the effective date of the
1991 Act.

This view of Baynes has in fact been adopted by several
panels of the Eleventh Circuit Court of Appeals. See, Curtis v.
Metro Ambulance Service, Inc., 982 F.2d 472 (11th Cir.1993). See
also, Goldsmith v. Atmore, 996 F.2d 1155, 1159 (11th Cir. 1993);

35a
Appendix A

Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d 1573 (11th
Cir.1993).

Based upon careful examination of the factors discussed
above, the undersigned agrees with the Honorable Robert H.
Hall, United States District Judge, that “[t]he Civil Rights Act of
1991 was signed by the President and became effective on
November 21, 1991. It does not apply to cases arising before the
effective date of the Act.” James v. American International
Recovery, Inc., Civil Action No. 1:89-CV-321-RHH, 57 F.E.P.
(BNA) 1226, 1991 WL 281734 (N.D.Ga. December 3, 1991).

Based upon the above, the undersigned Magistrate Judge
hereby RECOMMENDS that defendant’s motion for summary
judgment be GRANTED as it relates to plaintiff’s claims under
42 U.S.C. § 1981 and the Civil Rights Act of 1991.

42 U.S.C. § 1983 AND THE FOURTEENTH AMENDMENT

Plaintiff has brought this employment discrimination action
against defendant, a private insurance company. Plaintiff has
suggested absolutely no state action or involvement in the alleged
acts of discrimination. Accordingly, the undersigned Magistrate
Judge finds that plaintiff has failed to state a claim either under 42
U.S.C. § 1983 or the Fourteenth Amendment to the United States
Constitution as a matter of law. Sofarelli v. Pinellas County, 931
F.2d 718, 723 (11th Cir.1991). See also, Golden v. Biscayne Bay
Yacht Club, 521 F.2d 344, 348 (Sth Cir.1975); Corrente v. St.
Joseph’s Hospital and Health Center, 730 F.Supp. 493, 500
(N.D.N.Y.1990). Accordingly, the undersigned Magistrate Judge
hereby RECOMMENDS that defendant’s motion for summary
judgment be GRANTED with regard to these particular claims as
well.

36a
Appendix A

In summary, the undersigned Magistrate Judge hereby
RECOMMENDS that defendant's motion for summary judgment
be GRANTED in its entirety.

IT IS SO REPORTED AND RECOMMENDED, this 2nd
day of March, 1994.

37a

APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
DATED MAY 24, 1995

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 94-8719
Non-Argument Calendar

D.C. Docket No. 1:93-CV-1021-RLV

KENNETH M. PLAISANCE,
Plaintiff-Appellant,
versus
TRAVELERS INSURANCE COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Georgia

(May 24, 1995)
Before KRAVITCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:

Kenneth Plaisance appeals from the district court’s grant of
summary judgment in favor of Defendant-Appellee Travelers
Insurance Company (“Travelers”) in Plaisance’s pro se
employment discrimination action.

On appeal, Plaisance claims that: (1) the district court erred
by permitting the magistrate judge to hear and determine motions
for summary judgment, in violation of 28 U.S.C. § 636 and
Article III of the Constitution, and that the district court did not

38a

Appendix B

properly conduct de novo review of the magistrate judge’s reports
and recommendations; (2) Travelers did not answer Plaisance’s
request for admission of facts within the prescribed time period,
which constituted, under Fed. R. Civ. P. 36, a concession to the
facts set out in the request, thus entitling him to summary
judgment; (3) the district court erred by denying Plaisance’s
motion to amend his complaint to request a jury trial; (5) the
district court misapplied the summary judgment standard; (6) his
Title VII retaliation claim should have survived summary
judgment; (7) the district court erroneously held that his
constructive discharge claim was not sufficiently related to the
claims raised in his EEOC charge to merit consideration; and (8)
the district court erred by ruling that his case was not actionable
under 42 U.S.C. § 1981.

“We review the district court’s grant of summary judgment
de novo, applying the same legal standards used by the district
court.” Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th
Cir. 1995). “Summary judgment is appropriate when there are no
genuine issues of material fact and the movant is entitled to
judgment as a matter of law. The Court reviewing the motion
must consider the evidence in the light most favorable to the
nonmoving party.” Jaques v. Kendrick, 43 F.3d 628, 630 (11th
Cir. 1995). See Fed. R. Civ. P. 56(c) (summary judgment shall be
granted “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law”).

After de novo review of the record in this case and full
consideration of the legal arguments presented by the parties, we
conclude that summary judgment was properly granted in favor
of Travelers. Accordingly, we AFFIRM.

39a
APPENDIX C — 28 U.S.C. § 636

§ 636. Jurisdiction, powers, and temporary assignment

*. * *8

(b)(1) Notwithstanding any provision of law to the contrary —

(A) ajudge may designate a magistrate to
hear and determine any pretrial matter
pending before the court, except a motion for
injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss
or quash an indictment or information made
by the defendant, to suppress evidence in a
criminal case, to dismiss or to permit
maintenance of a class action, to dismiss for
failure to state a claim upon which relief can
be granted, and to involuntarily dismiss an
action. A judge of the court may reconsider
any pretrial matter under this subparagraph
(A) where it has been shown that the
magistrate’s order is clearly erroneous or
contrary to law.

(B) a judge may also designate a
magistrate to conduct hearings, including
evidentiary hearings, and to submit to a judge
of the court proposed findings of fact and
recommendations for the disposition, by a
judge of the court, of any motion excepted in
subparagraph (A), of applications for
posttrial relief made by individuals convicted
of criminal offenses and of prisoner petitions
challenging conditions of confinement.

40a
Appendix C

(C) the magistrate shall file his proposed
findings and recommendations under
subparagraph (B) with the court and a copy
shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the fin¢*_.gs or recommendations
made by the magistrate. The judge may also receive further
evidence or recommit the matter to the magistrate with
instructions.

4la

APPENDIX D — FEDERAL RULE OF
CIVIL PROCEDURE 36

Rule 36. Requests for Admission

(a) Request for Admission. A party may serve upon any
other party a written request for the admission, for purposes of the
pending action only, of the truth of any matters within the scope
of Rule 26(b)(1) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including the
genuineness of any documents described in the request. Copies of
documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and
copying. Without leave of court or written stipulation, requests
for admission may not be served before the time specified in Rule
26(d).

Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30 days
after service of the request, or within such shorter or longer time
as the court may allow or as the parties may agree to in writing,
subject to Rule 29, the party to whom the request is directed
serves upon the party requesting the admission a written answer
or objection addressed to the matter, signed by the party or by the
party’s attorney. If objection is made, the reasons therefor shall be
stated. The answer shall specifically deny the matter or set forth
in detail the reasons why the answering party cannot truthfully
admit or deny the matter. A denial shall fairly meet the substance
of the requested admission, and when good faith requires that a
party qualify an answer or deny only a part of the matter of which
an admission is requested, the party shall specify so much of it as
is true and qualify or deny the remainder. An answering party may
not give lack of information or knowledge as a reason for failure
to admit or deny unless the party states that the party has made
reasonable inquiry and that the information known or readily

42a
Appendix D

obtainable by the party is insufficient to enable the party to admit
or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial
may not, on that ground alone, object to the request; the party
may, subject to the provisions of Rule 37(c), deny the matter or
set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to
determine the sufficiency of the answers or objections. Unless the
court determines that an objection is justified, it shall order that
an answer be served. If the court determines that an answer does
not comply with the requirements of this rule, it may order either
that the matter is admitted or that an amended answer be served.
The court may, in lieu of these orders, determine that final
disposition of the request be made at a pre-trial conference or at a
designated time prior to trial. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.

(b) Effect of Admission. Any matter admitted under this
rule is conclusively established unless the court on motion
permits withdrawal or amendment of the admission. Subject to
the provision of Rule 16 governing amendment of a pre-trial
order, the court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved thereby
and the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice that party in
maintaining the action or defense on the merits. Any admission
made by a party under this rule is for the purpose of the pending
action only and is not an admission for any other purpose nor may
it be used against the party in any other proceeding.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970,
eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993,
eff. Dec. 1, 1993.)

43a

APPENDIX E — FEDERAL RULE OF
CIVIL PROCEDURE 56

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a declaratory
judgment may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for
summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in the party’s favor
upon all or any part thereof.

(b) For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in the party’s favor
as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall
be served at least 10 days before the time fixed for the hearing.
The adverse party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. A
summary judgment, interlocutory in character, may be rendered
on the issue of liability alone although there is a genuine issue as
to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion
under this rule judgment is not rendered upon the whole case or
for all the relief asked and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the

ee)
Appendix E

evidence before it and by interrogating counsel, shall if
practicable ascertain what material facts exist without substantial
controversy and what material facts are actually and in good faith
controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action the facts so specified shall
be deemed established, and the trial shall be conducted
accordingly.

(e) Form of Affidavits; Further Testimony; Defense
Required. Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn
or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court
may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party’s pleading, but the
adverse party’s response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the
adverse party.

(f) When Affidavits are Unavailable. Should it appear
from the affidavits of a party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential to
justify the party’s opposition, the court may refuse the

45a
Appendix E

application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely
for the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused the
other party to incur, including reasonable attorney’s fees, and any
offending party or attorney may be adjudged guilty of contempt.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)

46a

APPENDIX F — FEDERAL RULE OF
CIVIL PROCEDURE 225

RULE 225
DISCOVERY PRACTICE

225-1. Discovery Period.

(a) Commencement; Length. The discovery period shall
commence 30 days after the appearance of the first defendant by
answer to the complaint. Discovery proceedings shall be initiated
promptly so that discovery may be initiated and completed within
the period designated in the discovery track to which the case is
assigned, unless the Court has either shortened the time for
discovery or has for cause shown extended the time for discovery.
Discovery must be initiated sufficiently early in the discovery
period to permit the filing of answers and responses thereto
within the time limitations of the existing discovery period. See
also LR 201-2, Mandatory Interrogatories for All Parties.

The discovery tracks established in this Court are (1) 0-
months discovery period; (2) 4-months discovery period; and (3)
8-months discovery period. A chart showing the assignment of
cases to a discovery track by filing category is contained in
Appendix F.

47a

APPENDIX G — FEDERAL RULE OF
CIVIL PROCEDURE 38

VI. TRIALS
Rule 38. Jury Trial of Right

(a) Right Preserved. The right of trial by jury as declared
by the Seventh Amendment to the Constitution or as given by a
statute of the United States shall be preserved to the parties
inviolate.

(b) Demand. Any party may demand a trial by jury of any
issue triable of right by a jury by (1) serving upon the other parties
a demand therefor in writing at any time after the commencement
of the action and not later than 10 days after the service of the last
pleading directed to such issue, and (2) filing the demand as
required by Rule 5(d). Such demand may be indorsed upon a
pleading of the party.

(c) Same: Specification of Issues. In the demand a party
may specify the issues which the party wishes so tried; otherwise
the party shall be deemed to have demanded trial by jury for all
the issues so triable. If the party has demanded trial by jury for
only some of the issues, any other party within 10 days after
service of the demand or such lesser time as the court may order,
may serve a demand for trial by jury of any other or all of the
issues of fact in the action.

(d) Waiver. The failure of a party to serve and file a
demand as required by this rule constitutes a waiver by the party
of trial by jury. A demand for trial by jury made as herein
provided may not be withdrawn without the consent of the
parties.

(e) Admiralty and Maritime Claims. These rules shall

48a
Appendix G

not be construed to create a right to trial by jury of the issues in an
admiralty or maritime claim within the meaning of Rule 9(h).

(As amended Feb. 28,1966, eff. July 1,1966; Mar. 2,1987, eff.
Aug. 1, 1987; Apr. 22,1993, eff. Dec. 1,1993.)

49a

APPENDIX H — 42 U.S.C. § 1981
42 U.S.C. § 1981. Equal Rights Under the law

(a) Statement of equal rights

All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws
and proceedings for the security of persons
and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of
every kind, and to no other.

50a

APPENDIX I — 42 U.S.C. § 2000e-2

’- «+ *#

§ 2000e-2. Unlawful employment practices

(a) Employer practices. It shall be an unlawful employment
practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin; or

(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of
such individuals race, color, religion, sex, or national origin.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1693%3A2. Public record. Not legal advice.